Grace Mwikali Somba v Muka Mukuu Farmers’ Co-Operative Society Ltd & another;Anastacia Kanini Kimeu & another (Interested Parties) [2021] KECPT 30 (KLR)

Grace Mwikali Somba v Muka Mukuu Farmers’ Co-Operative Society Ltd & another;Anastacia Kanini Kimeu & another (Interested Parties) [2021] KECPT 30 (KLR)

REPUBLIC OF KENYA

IN THE CO-OPERATIVE TRIBUNAL AT NAIROBI

TRIBUNAL CASE NO. 164 OF 2021

GRACE MWIKALI SOMBA......................................................................CLAIMANT

-VERSUS-

MUKA MUKUU FARMERS’ CO-OPERATIVE SOCIETY LTD.....1ST RESPONDENT

MICHAEL KYAVI MWANZIA.............................................................2ND RESPONDENT

-AND-

ANASTACIA KANINI KIMEU.......................................1ST INTERESTED PARTY

LAND REGISTRAR, MACHAKOS..............................2ND INTERESTED PARTY

RULING

The Respondent filed a Notice of Preliminary Objection dated 15th April 2021, essentially challenging the jurisdiction of this Tribunal over the subject matter, contending that the dispute concerns itself with land ownership, boundaries and usage of land, and these are not contemplated for purposes of adjudication under the Co-operative Societies Act. The parties proceeded by way of written Submissions, which we have carefully considered, and on reliance thereupon we make this Ruling.

ISSUES FOR DETERMINATION

Having carefully considered the documents and arguments by both parties in their Written Submissions, we have framed the following issue for determination:

(a) Whether Tribunal has jurisdiction to handle the present Claim

ANALYSIS OF ISSUES

We now proceed to dissect the issues as follows:

(a) Whether Tribunal has jurisdiction to handle the present Claim

Section 76(1)(c) of the Co-operative Societies Act Cap 490 of the Laws of Kenya provides that if any dispute concerning the business of a co-operative society arises between the society and any other co-operative society, it shall be referred to the Co-operatives Tribunal. This is a wide jurisdiction, but it is not unlimited. This jurisdiction extends to subjects that affect the interests of the Society, including investments. This is what has been defined in law as “the business of the Society.”

The present Claim is between a member of a Co-operative Societies on the one hand, and the said Co-operative Society alongside its Secretary on the other hand. The interested Parties include a member of the Co-operative Society and a Registrar of Lands. While indeed the herein dispute concerns itself with land ownership, boundaries and usage of land, we are not persuaded that it falls outside the ambit of the business of the Society, whose role includes purchase of land for its members.

The business of the society is not just about the internal affairs of management, but includes protection of the economic interests of its members, including their investments, as was held in Gitanga Coffee Growers -vs- Gitau [1970] EA 361. On the premise of the foregoing, we are not persuaded that the Respondents should be permitted to escape from the proceedings hereof

We thus hold that it is unsustainable for this Tribunal to renege its jurisdiction in a case where the economic interests and investments of members through their Co-operative Society is in contestation.

In the interest of justice, we find that the Orders sought should be denied and the Preliminary Objection dated 15th April 2021 be disallowed, and the matter to proceed to hearing.

ORDERS

We therefore Order as follows:

a.  The Defendant’s Notice of Preliminary Objection dated 15th April 2021 be and is hereby dismissed with costs;

b.  The matter to proceed to full trial: parties to file and exchange their witness statements and documents within 30 days hereof; and

c.  Mention for Directions on 25.1.2022

RULING SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 25TH DAY OF NOVEMBER, 2021.

Hon. B. Kimemia            Chairperson                   Signed        25.11.2021

Hon. J. Mwatsama         Deputy Chairperson      Signed        25.11.2021

Mr. Gitonga Kamiti        Member                         Signed        25.11.2021

Mr. B. Akusala                Member                         Signed        25.11.2021

Mr. P. Gichuki                Member                         Signed        25.11.2021

Tribunal Clerk               R. Leweri

Chimei  for the Claimant

Mutua  holding  brief  for Ayieko for the  1st Respondent

Hon. J. Mwatsama         Deputy Chairperson      Signed        25.11.2021

Mutua-  We wish  to seek leave  to Appeal.

We request  for a copy  of proceedings  and Ruling.

Hon. J. Mwatsama         Deputy Chairperson      Signed        25.11.2021

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